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Monday, March 27, 2017

Will There Ever Be A Warren Court Moment for Progressives?

It has become a statement of conventional wisdom—even though it is one without extensive reliable empirical evidence—that the electoral base of the Republican Party cares more about judicial nominations than does the electoral base of the Democratic Party.  Propositional citations for this include candidate for President George W. Bush referencing by name Justices Antonin Scalia and Clarence Thomas as his models for a Supreme Court Justice, and President Donald J. Trump suggesting that part of the reason he won was that conservative voters were concerned about the future of the Supreme Court.  My article with Donald Braman from a few years ago suggests that Democratic Party voters are more loyal to the Supreme Court, and are less likely to turn against the Court in response to a Court decision they dislike.  What could convince the electoral base of the Democratic Party to care about judicial nominations?

One of the mechanisms identified in the psychology literature is a “critical moment” that directs the attention of groups to an issue, and with a frame that causes them to reevaluate how they think about the issue.  The conventional account has been that the Warren Court was the (prolonged) critical moment for conservative voters, a period that directed them to care about judicial nominations.  We can even combine this with the endowment effect, and argue that conservative voters were particularly upset about the Warren Court because we are most alerted by critical moments that threaten to deliver a loss than those that promise to deliver a gain.

Will a Senate filibuster of the Neil Gorsuch nomination be a critical moment for the Democratic Party, causing their base to care about judicial nominations? The failed nomination of Merrick Garland could have been such a moment.  Leaders within the legal and political establishment of the Democratic Party remain upset about how the Senate treated Garland.  The polling evidence I have seen thus far, though, suggests that the salience of Garland’s nomination is not pervasive among the Democratic Party base.  A Pew poll found that Republicans actually cared more about the Garland nomination than Democrats did.

This is part of why the nomination of Gorsuch to the Supreme Court matters politically so much even after Donald J. Trump leaves office—and matters as what appears to be a lost opportunity for a Warren Court moment.  The hearings have generated little focused energy among many Democrats, particularly given other issues that have energized them more in Trump’s chaotic and overstimulated Washington.  The absence of sustained interest within the Democratic Party on judicial nominations for the next generation seems to be likely, that that absence will be due to the lack of a Warren Court moment now.

Posted by David Fontana on March 27, 2017 at 05:34 AM | Permalink


Free speech absolutism is no longer a "liberal" thing, you are more likely to find free speech absolutists on the right than on the left.

Posted by: David Bernstein | Mar 29, 2017 7:32:33 PM

"But what sense does it make to forbid selling to a 13-year-old boy a magazine with an image of a nude woman, while protecting a sale to that 13-year-old of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her? What kind of First Amendment would permit the government to protect children by restricting sales of that extremely violent video game only when the woman—bound, gagged, tortured, and killed—is also topless?
This anomaly is not compelled by the First Amendment."
-Justice Breyer’s dissent in Brown v. EMA

Clearly a moderate, and not a free-speech absolutist.

Posted by: Link | Mar 29, 2017 1:59:51 AM

"Being moderate on criminal justice matters, but liberal on everything else, doesn't make one a moderate, it makes one a liberal who is moderate on criminal justice matters."

I cited it as a particular, not the ONLY thing that underlines that he is a "moderate." Criminal justice matters is an "major ideological split" too & when it suits, conservatives cite it to show that sometimes a person like Scalia can be a defendant's friend. Now, it's an also-ran, apparently.

It is not assumed here that Garland is not a liberal at all. Likewise, O'Connor and Powell were moderates, while still leaning conservative. Breyer, however, repeatedly on "major ideological splits" did not vote with the strong left position. He voted to strike down mandatory Medicaid expansion. He repeatedly upheld religious funding or displays, once even being the swing vote over O'Connor. How many exceptions are necessary before "moderate" is acceptable?

Finally, even if he supported a liberal position, the death penalty notwithstanding, he was a MODERATE liberal, often purposely trying to find a mild middle ground. Garland's record reflected this sort of thing, which again led some more strongly liberal to rather someone else.

Posted by: Joe | Mar 28, 2017 9:26:35 PM

Orin, along the lines of your comment, an important contribution that Gorsuch could make to reduce the venom directed toward the Court is to not join the four members (presumably the four conservatives including Kennedy) that apparently were ready to declare the closed shop to be unconstitutional. This is precisely the sort of issue that justices should be leaving to the political process. There has been no shortage of law professors writing articles that either the closed shop or open shop are unconstitutional depending upon their own political (oops, I meant to say their analytical study of the Constitution) preferences. Until Justices resist the temptation to frequently use the powers claimed by their predecessors under Marbury v Madison, the legitimacy of the Supreme Court will continue to deteriorate.

Posted by: PaulB | Mar 28, 2017 8:20:24 PM

Being moderate on criminal justice matters, but liberal on everything else, doesn't make one a moderate, it makes one a liberal who is moderate on criminal justice matters. On all the major 5-4 ideological splits on SCOTUS, Garland would have voted with the liberal bloc, or the liberal bloc plus Kennedy.

Posted by: David Bernstein | Mar 28, 2017 11:45:44 AM

I do think that the Democrats figured Hillary Clinton would win, but even if a Republican candidate was equally favored, it is quite possible that the Republicans would have used it to excite their base more. Or, the base or some segment of it would have been more excited. In 2016, it was a useful way to promote the election of a candidate that many didn't like as a means to an anti-abortion end or whatever.

Garland was not falsely labeled as a moderate. He is basically safely liberal on various issues but looking at his record, the (true) judgment was that he would be a Breyer. Breyer repeatedly acts like a moderate. He was a moderate Democratic choice. In criminal justice matters in particular, I'm sure he would have disappointed various on the left.

Posted by: Joe | Mar 28, 2017 10:08:03 AM

Have to agree with Professor Bernstein. Democrats weren't irritated about the Garland situation until Trump won, because they thought Hillary was going to put Loretta Lynch on the court.

Posted by: Link | Mar 27, 2017 11:42:30 PM

One reason that Democrats didn't get too upset re Garland was that we was (falsely) portrayed as a moderate, and the expectation was that Clinton would get elected and appoint someone more liberal.

Posted by: David Bernstein | Mar 27, 2017 3:28:28 PM

I would think that most people only really care about the Supreme Court when they have sustained experience (over years) with the Supreme Court ruling that their policy preferences are unconstitutional. And then the sense lasts a long time, with felt narratives being hard to dislodge. I would guess that the Supreme Court's voting record is too mixed in recent years to generate much of new views on this: You get cases like Citizens United on one side and Obergefell on the other.

Posted by: Orin Kerr | Mar 27, 2017 1:20:50 PM

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